Bill C-49: The Sword of Damocles

At a press conference held in Delta outside the "illegal migrant vessel, the Ocean Lady," the vessel that brought 76 migrants to our shores in 2009, Jason Kenney, the Minister of Citizenship, Immigration and Multiculturalism, laid out his government's proposal to deter similar migrant arrivals in the future. Alongside him were Minister of Public Safety, Vic Toews, and Stockwell Day, the former Public Safety Minister and current President of the Treasury Board and the Regional Minister for British Columbia.

The Bill, titled the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, appeals in some ways, but is troubling in others. For one thing, it intends to deal with illegal migration and abuses of Canada's system for dealing with refugee claims, not its immigration system. Perhaps most troubling is the state of uncertainty that legitimate refugees must endure. According to Mr Kenney:

"If the IRB and its Refugee Protection Division determine that [a migrant] has a well-founded fear of persecution in their country of origin, they will receive a temporary resident visa in Canada for a period of five years. At the end of that five-year period, the Minister can apply to review the conditions in their country which gave rise to the asylum claim. And if the IRB determines that the country conditions have changed fundamentally, and they could then return safely to the country of origin, then they would be subject to removal."

In other words, a migrant may be found to have a legitimate asylum claim by the IRB, and after five years in this country is still subject to removal based a Minister-initiated regarding the country of origin.

Are we interested in providing asylum to refugees only until the trouble blows over, or are we interested in allowing refugees to build a new future for themselves and their families, free from the threat of arbitrary removal to their country of origin? If we have determined on one occasion that there is a significant risk of persecution, is it fair to return such refugees against their will to that same country?

Justin Trudeau, Liberal critic for Citizenship and Immigration, had this to say:

"As is usual when the Conservative government brings in a response, it's two things, it's increased sentences and sweeping discretionary powers for the Minister [...] They've tried to blur the distinction between immigrants and refugees. I mean, refugees are not queue jumpers, there is a process for refugees, there is not a queue. In blending refugees and immigrants, we're walking down a dangerous path."

Trudeau is right. The Bill calls for denying appeals regarding decisions of the Refugee Protection Division to uphold termination of refugee protection by the Minister:

"(2) Despite subsection (1), no appeal may be made in respect of the following:
[...]
(c) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; or
(d) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection."

We have an international obligation, enshrined in agreements like the 1951 Convention Relating to the Status of Refugees, to provide safe harbour to migrants fleeing persecution. The Conservatives misguidedly villify the refugees and not the smugglers. The migrants are detained on arrival for up to a year. They are guilty until proven innocent. And the welcome we deign to provide can be rescinded five years later even if the refugee has done nothing to contribute to the reversal.

In fact, according to the Convention, I don't think Canada is permitted to do what this Bill proposes. We agreed that "The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order." A change in the conditions of the country of origin has no bearing.


I don't want Canada's willingness to harbour refugees to be abused. I understand that concern. It's my tax dollars that are paying for the detention of these migrants too, and I don't want them squandered. I don't want to be duped. But our refugee claims processing needs to be properly resourced so we promptly identify claimants, assess their claim, return them if their claim is found to be without merit, and embrace them otherwise. If enough claimants are promptly turned away, the $50,000 stake they post to their smugglers is a longshot bet future migrants are unlikely to make.